His practice at the bar had been for some time falling off, and his health had already begun to fail, when, on 10th November, 1823, Clerk was appointed an Ordinary Lord of Session in the place of Lord Bannatyne. Assuming the title of Lord Eldin, he took his seat on the bench on 22nd November. As a judge he was not a success; his temperament was not a judicial one, and his faculties at the date of his elevation were seriously impaired. In consequence of the infirmities of age, after five years of judicial work, he resigned in 1828, and was succeeded by Lord Fullerton. He died unmarried at his house, No. 16 Picardy Place, Edinburgh, on 30th May, 1832, in the seventy-sixth year of his age.
As a pleader Clerk was distinguished by strong sense, acuteness, and the most profound reasoning. Throughout his entire career at the bar he delighted in defying, ridiculing, and insulting the bench; and it is recorded that his whole session was one keen and truceless conflict with judicial authority. He was in the habit of saying whatever he liked to certain of the Outer House judges without reproof. Lord Craigie especially, it is said, suffered a species of torture from him that required great natural sweetness and kindness of disposition to endure. Clerk, however, did not come off so well with the Inner House judges. On one celebrated occasion, having used somewhat threatening language towards Lord Glenlee in the Second Division, he was reluctantly compelled by the Court to make an apology to the offended judge. An account of this remarkable scene will be found in the “Journal of Henry Cockburn” (1874, vol. ii., pp. 207-210).
In politics Clerk was a zealous Whig. He had a considerable taste for fine arts, occasionally amused himself in drawing, painting, and modelling, and had such an attachment to cats that his house could always boast of half-a-dozen feline indwellers. It is recorded that at the sale of his collection of paintings and prints, which took place at his house in Picardy Place after his decease, the floor of the drawing-room gave way, and about eighty persons—one of whom was killed—“were precipitated into the room below, to the destruction also of much valuable china and numerous articles of vertu there displayed.”
In appearance Clerk was singularly plain; he was also very lame, one of his legs being shorter than the other; and his inattention to dress was proverbial. It is related that when walking down the High Street one day from the Court he overheard a young lady saying to her companion rather loudly, “There goes Johnnie Clerk, the lame lawyer,” upon which he turned round and said, “Na, madam, I may be a lame man, but no’ a lame lawyer.”
Clerk was of a convivial disposition, and the contrast between the crabbed lawyer and the good-natured bon vivant was strongly marked. He was a member of the Bannatyne Club, of which Sir Walter Scott was president. On one occasion, after the anniversary dinner, he is said to have fallen down-stairs and injured his nose, which necessitated his wearing a patch upon the organ for some time afterwards. On a learned friend inquiring how the accident happened, Clerk replied that it was the effect of his studies. “Studies!” ejaculated the inquirer. “Yes,” growled Clerk; “ye’ve heard, nae doot, about Coke upon Littleton, but I suppose ye never heard tell o’ Clerk upon Stair!”
An interesting account of Clerk’s striking personality is given by Lord Cockburn in his “Life of Lord Jeffrey” (1852, vol. i., pp. 199-205).
Robert Hamilton, advocate (1750-1831), son of Alexander Hamilton of Gilkerscleugh, Lanarkshire, distantly connected with the ducal house of Hamilton, was born about 1750. He entered the army, and was present at the Bunker’s Hill and other battles of the American War of Independence, where he fought gallantly, and was severely wounded. He afterwards studied law, and became a member of the Faculty of Advocates in 1788. He was appointed Sheriff-depute of Lanarkshire in 1797, and on his resignation of that office, in 1822, he was appointed, on 5th February of the same year, Principal Clerk in the First Division of the Court of Session. He married a daughter of David Dalrymple of Westhall, one of the Senators of the College of Justice. He died on 13th December, 1831.
Hamilton was an intimate friend of his colleague, Sir Walter Scott, who mentions him frequently in his “Journal” as being incapacitated by gout from attending to his professional duties. They were both Commissioners of the Northern Lights, and went together the voyage of inspection in 1814, described by Lockhart (“Life of Scott,” 1839, vol. iv., pp. 182 et seq.). Hamilton is noted therein as good humoured, even when troubled with the gout; “a very Uncle Toby in military enthusiasm, and a brother antiquary of the genuine Monkbarns breed.” On his deathbed he gave Scott the sword he had carried at Bunker’s Hill.
Hamilton was well known as a legal writer and genealogist. He had the credit of being a good lawyer, and, it is said, “obtained much professional reputation for getting up the case for Hamilton of Wishaw, which carried the peerage of Belhaven before a Committee of Privileges. He also drew up the elaborate claim of Miss Lennox of Woodhead to the ancient earldom of Lennox, an interesting production, but based on a fallacy.”